It appears in this case that the appellant, whom the defendant seeks, to charge upon the undertaking given upon the issue of the injunction, was not a party to the undertaking. He did not sign it, and we do not see how it is possible to sustain the order that a judgment be entered against him for the amount awarded upon the reference. If the plaintiff in such a case does not sign the undertaking, there is nothing on which you can proceed against him in this method.
It is said that the Code does not expressly require the plaintiff to sign this class of undertakings, and that the sureties may not be, as it is suggested they were not in this case, sufficiently responsible to afford the defendant indemnity; but the remedy for an insufficient security is to apply to the court to compel the plaintiff to furnish new security, which is a very common practice.
If the plaintiff is not made a party to the undertaking, the remedy of the defendant, in case the injunction proves to have been one to which he was not entitled, is an action on the case for-damages. The right which the Code gives to the summary proceeding to ascertain the amount of damages by a reference, is given only as against the parties to the undertaking.
The order appealed from must be reversed.
Present—Gr. Q-. Barnard and Cardozo, JJ. In this case, Ingrasham, P. J., having made the order appealed from, did not sit.